Had a data breach but you are not sure if it is reportable? There is a new choose-your-own-adventure tool you should consider. On March 26, 2025, the Office of the Privacy Commissioner of Canada (the "OPC") announced the launch of a new online tool designed to help organizations assess the real risk of significant harm ("RROSH") in the context of a privacy breach (or "breach of security safeguards, as it is called in the Personal Information Protection and Electronic Documents Act ("PIPEDA")).This web-based application offers a streamlined process for users to evaluate the sensitivity of personal information involved in a data breach and the likelihood of its misuse. Through a series of guided questions, the tool provides results that aid organizations in conducting a thorough risk assessment post-breach. For more guidance, please see our previous blog on breach notification obligations and best practices.
Privacy Legislation and the Real Risk of Significant Harm
The risk of a privacy breach is a constant threat that organizations must face. Organizations subject to PIPEDA are required to report privacy breaches to the OPC and notify the affected individuals where they pose a RROSH. Substantially similar laws in Alberta and Quebec are likely to be interpreted in light of OPC guidance on RROSH and the influence of this tool is likely to span beyond PIPEDA's direct scope.
However, given that the compliance regime related to mandatory breach notification requirements is based on self-reporting, one wonders what exactly is a RROSH and how would an organization know that this threshold has been met in any given scenario. The OPC provides some guidance, relying on PIPEDA's definition of significant harm as including "bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property", and providing some other relevant factors for assessment. The OPC expands on the key considerations in PIPEDA of "the sensitivity of the personal information involved in the breach" and "the probability that the personal information has been, is being or will be misused" by referencing factors that include the context of the breached information, who accessed it, the duration of exposure, evidence of malicious intent, the number of data elements affected, the relationship between the affected individuals and the individual or organization who had access to the information, and whether the affected individuals may be distinctly vulnerable (such as if they have a stigmatized medical condition). However, the underlying assessment remains highly contextual and the potential for significant consequences, including long and arduous litigation, means that organizations must be carefully consider the risks when determining if they have an obligation to report a breach.
How the Tool Works
The new online tool provides guided questions to help assess both the sensitivity of the personal information that is involved in the privacy breach and the probability that it will be misused. The tool asks a variety of questions including whether personal information was impacted by the breach, the types of personal information involved, the number of potential victims, the type of breach, the type of third party that received or obtained the breached personal information, whether such a third party still has access to the personal information and the profiles of the victims of the breach.
It is important to note, however, that the OPC has accompanied the tool with several disclaimers including the following:
"This tool is made available for general information only and is not meant to replace your organization's or government institution's own assessment of a breach of security safeguards. Your organization or government institution should still conduct its own review of a breach and consider all applicable laws."
As such, the tool is not meant to replace legal advice. Moreover, the tool does not constitute a decision by the OPC and it does not limit the OPC's ability to take enforcement actions down the line, even in situations where the tool has previously concluded that a given privacy breach does not trigger any RROSH. The tool's threshold for RROSH also appears to err on the side of reporting, also in part because it cannot take into account all possible factors relevant to such an assessment. There may be reasons beyond the tool that would result in there being no RROSH. That said, organizations should also keep in mind that voluntary reporting is permitted and, in some instances, may be the appropriate path even where there is no RROSH.
Conclusion
While the tool is only meant to act as a guide in the process of RROSH evaluations, it can be a useful starting point to assess the severity of a breach and brainstorm worst-case scenarios. We also recommend organizations use it when developing their internal procedures for reporting a breach. Notwithstanding this commendable initiative by the OPC, given the highly contextual analysis of the RROSH threshold, we continue to encourage organizations to seek formal legal advice on their statutory breach notification and reporting obligations.
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